Clark v. Derwinski — New rating criteria apply where more favorable

The appellant sought a higher PTSD rating and argued that VA had effectively used the pre-1988 psychiatric rating criteria when assigning a 50% evaluation. The Court reviewed the June 1989 rating decision, the December 1989 Statement of the Case, and the Board’s reasons and bases. It concluded that the record supported the inference that VA applied the revised schedular criteria, which were in effect when service connection and the rating decision were made.

The Court also rejected the notion that the veteran’s own characterization of his symptoms as “severe” established entitlement to the higher rating. Although the Board did not expressly identify the revised regulation, its analysis tracked the language of the new criteria and satisfied 38 U.S.C. § 7104(d)(1). The Court further noted Karnas and recognized that the newer criteria were more favorable, but found no demonstrated legal or factual error warranting reversal. The decision was affirmed.

If a regulation changes during the pendency of a claim, the more favorable version applies, but reversal requires a showing that VA actually failed to apply the correct criteria or otherwise committed prejudicial error.

A claimant cannot obtain a higher rating simply by arguing that a later, more favorable schedule exists; the appellate record must show that VA misapplied the governing rating criteria or failed to provide adequate reasons and bases.

Clark is a useful citation when rating criteria change midstream and the dispute is whether VA used the correct version of the schedule. It also shows that the Court will affirm where the SOC and Board reasoning demonstrate use of the revised criteria, even if the Board did not spell out the regulation in perfect detail.

Assuming changed rating criteria were ignored without proving the decision actually relied on the wrong standard.

A veteran receives a psychiatric rating after a regulatory revision and argues that the older, less favorable standard was used. Clark supports checking the SOC and rating rationale to see whether the newer criteria were in fact applied.

Use Clark to frame arguments about changed rating schedules, Karnas-style favorable-law analysis, and reasons-or-bases review. It is especially helpful in rebutting unsupported claims that VA used the wrong criteria where the decision language mirrors the revised regulation.

Karnas v. Derwinski, Gilbert v. Derwinski, Harris v. Derwinski